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Padilla case going to appeals courtIssues include enemy combatant status
From Phil Hirschkorn
NEW YORK (CNN) -- A federal judge Wednesday cleared the way for an appeals court to decide whether President Bush had the authority to designate a U.S. citizen an enemy combatant and let him be questioned indefinitely in an alleged plot to set off a radiological "dirty bomb." U.S. District Judge Michael Mukasey also asked the 2nd U.S. Circuit Court of Appeals to review his opinion that defense attorneys have the right to visit with Padilla, which the government has refused to allow. The government has so far won the central legal argument in Mukasey's court -- that the president acted lawfully last June when he labeled Padilla an unlawful combatant and transferred his custody from the Justice Department to the Defense Department. Padilla, 31, a former Chicago gang member, has been held at a naval brig in Charleston, South Carolina, since Bush designated him an enemy combatant. He was arrested last May as he returned from a trip to Pakistan. Initially held as a material witness in a grand jury probe of the September 11 attacks, Padilla was later accused of approaching al Qaeda's top terrorism coordinator in Afghanistan in 2001 and proposing to steal radioactive material to detonate a dirty bomb in the United States. Such a weapon uses conventional explosives to disperse radioactive materials. The government has said Padilla twice met with senior al Qaeda operatives in Pakistan in March and discussed the plot. Mukasey ruled last December 4 that Bush's determination could be upheld in the future if the government provided "some evidence" to support it. On March 11, Mukasey ruled that Padilla should be able consult with counsel in order to contest the government's evidence and asked both sides to submit conditions for attorney-client meetings. The government declined, saying such meetings could undermine ongoing negotiations and thus jeopardize national security, and asked Mukasey to reconsider his order. Attorneys Donna Newman and Andrew Patel want access to Padilla five hours a day over a five-day period. They want to speak to him without audio monitoring and take notes that won't be confiscated. They also want Padilla to see them without being shackled or separated by any partition and to be relieved of any sensory deprivation interrogation techniques, if they are occurring, at least three days before their arrival. "It is moving the process along," Patel said of the order, although it left out the proposed meeting conditions for appellate review. "Hopefully, the appeals court will vindicate Judge Mukasey's ruling that an American citizen has the right to appear in court, through counsel, to contest the legality of his detention," Patel said. U.S. Attorney James Comey had no comment. A Justice Department spokeswoman said the department "is pleased the Court of Appeals will have a chance to review these important issues." It is unknown how quickly the appeal will be heard. Officials have said top al Qaeda lieutenant Abu Zubaydah, now a captive, provided a key tip about Padilla. Born in Brooklyn and raised in Chicago, Padilla has served prison time for a juvenile murder in Illinois and for a gun possession in Florida. Copyright 2003 CNN. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. Associated Press contributed to this report.
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